CLASS 8 Remedies: specific performance and Performance by Equivalence

CLASS 8 Remedies: specific performance and Performance by Equivalence

Art. 1590 and 1601 C.c.Q.

Art. 1590: the creditor could demand the obligation be performed in full, properly and without delay.

When the debtor fails to perform his obligation without justification on his part and he is in default, the creditor may, without prejudice to his right to the performance of the obligation in whole or in part by equivalent,

1. 
   force specific performance of the obligation;
   
2. 
   in the k-ual obligation, obtain the resolution or resiliation of the k OR the reduction of his own correlative obligation;
   
3. 
   enforce his right to the performance of the obligation by taking any other measur provided by law.
   

Art. 1601: a creditor may, in cases which admit of it, demand that the debtor be forced to make specific performance of the obligation.

¶436 “Contrairement à la common law, on affirme en droit civil que le créancier a un droit fondamental, dans les cas qui le permettent, à l’exécution en nature de l’obligation contractuelle, c’est à dire, à obtenir directement ou indirectement la prestation prévue au contrat.”

1. 
   Where the order would require unique or personal services of the debtor, most often in the case of a physical person. This type of restriction normally doesn’t apply to a moral person, as in Aubrais v. Laval where police force is seen as a large public body, where individual candidates are not so much hired for personal characteristics but for the profile they fit.
   
2. 
   When specific performance would be physically impossible, would create a serious danger, or runs contrary to a legal norm
   
3. 
   When specific performance would unreasonably limit the rights of a third party. For example, if you has a lease for an apartment, but then a third party in good faith rented the same apartment, specific performance of the first contract would unduly prejudice the rights of the third party who in good faith rented that same apartment.
   
4. 
   When the order for specific performance cannot be made with enough precision, such that it would be too difficult to identify who is in breach of the order and for what reason. You must be able to make clear proof of the violation, therefore the acts cannot be too complex.
   

• 
  Specific performance is an area with a very distinctive civilian philosophy.
  
• 
  It is one of the rare instances where two cases, one form the common law (Argyll Stores) and one from the civil Law (Golden Griddle) can have virtually identical facts but have such different reasoning and produce such divergent outcomes.
  
• 
  the remedy used to enforce specific performance is the injunction. The irony is that the injunction is a common law remedy that stems from equity.
  
• 
  However, whereas equity in the common law is supposed to be only secondary, where the law provides no sufficient relief, specific performance has been established as being on par with an award of damages in the Civil law.
  
• 
  As noted in Argyll stores, “Specific performance is traditionally regarded in English Law as an exceptional remedy, as opposed to the common law damages to which a successful plaintiff is entitled as of right.” This is representative of the common law approach.
  

• 
  The case of specific performance provides an excellent illustration of the possible responses to the question of what can happen when one legal system imports a concept from another.
  
• 
  Jukier says there are three possibilities:
  

1. 
   Rejection
   

2332 CCQ: In the case of a loan of a sum of money, the court may pronounce the nullity of the contract, order the reduction of the obligations arising form the contract or revise the terms and conditions of the performance of the obligations to the extent that it finds that, having regard to all the circumstances, one of the parties has suffered lesion.

2. 
   Adoption and Blind application of the transplanted concept:
   

• 
  this is what first happened in relation to specific performance
  
• 
  until the 1980s, the QC courts basically just adopted the common law position
  

3. 
   Adaptation to fit within the new system:
   

• 
  When you understand the mentality of an entire system; you will be in a better position to effect a successful transplant and integration of a concept. If you don’t understand the big picture of a system, it’s hard to fit in pieces.
  
• 
  It is clear from 1590 CCQ that the right is not subsidiary, but codified and on par
  
• 
  The phrase “in cases which admit of it” from 1601, however, ended up limiting the scope of specific performance
  
• 
  Jukier says that the civil law is based on the notion of will: voluntary undertaking of binding obligations, and the supremacy of le droit subjectif
  
• 
  the common law, on the other hand, requires external ratification through things such as consideration: some kind of “proof” of the binding
  
• 
  in civil law, consent is the tie that binds, respect for “la parole donnée”: pacta sunt servanda: binding force of one’s agreement – if the will creates an obligation, that’s what makes it binding, there is no need for external evaluative criteria
  
• 
  the will dictates that as long as there is no defect, unfairness or bad faith, then the obligation must be performed
  
• 
  therefore it gives the creditor the choice of a remedy: which ever is best to have the subjective will enforced
  
• 
  In Aubrais v. Laval, you can see the court battling back against common law intrusion and making decisions on their own, civilian, terms:
  

• 
  in actual practice, however, the words “in cases which admit of it” have been used to circumscribe the remedy
  
• 
  What exactly is it that is happening that underlies those instances where you cannot enforce specific performance?
  

1. 
   Nemo praecise rule: you can’t do it if it requires physical force to get someone to do something
   

-this led to an even more artificial distinction between positive and negative obligations

-essentially, this was just a way for courts to enforce specific performance when they wanted to by construing the obligation negatively, and not enforce it when they didn’t want to by construing the obligation positively

-essentially, it did the same thing that consideration did for the common law, as argued by Atiyah

ex: Hockey association: Do not discriminate, is essentially let the girl play

Do not restrict access vs. Do take down the fence

-the distinction invariably breaks down, there is just as much constraint involved in one as the other

• 
  Jukier also disagrees that individuals are more constrained than corporations when specific performance is ordered
  
• 
  Objections based on “supervision” argument
  

-exemplifies the goal of finality in litigation: a winner , a loser, clear outcome: that’s why common law prefers damages: you pay and it’s over

• 
  Common law objection based on “hardship”: Golden Griddle case doesn’t buy this
  

-Jukier says we should be looking from the perspective of the creditor, not the debtor, because the creditor is the one who’s entitled to the remedy. If we accept hardship it’s because we’re looking solely from the perspective of the debtor, and this isn’t fair: the debtor is the one who is in breach!

-QC Courts look at the utility of the remedy for the creditor

• 
  But, this theory of looking from the point of view of the debtor doesn’t really hold true: Quebec courts still adhere to the Nemo Praecise rule: if the personal services of the debtor are of the essence, specific performance will not be enforced. However, it is precisely when the services are of a personal nature that damages are an inadequate remedy.
  
• 
  You would want specific performance because a third party could not perform the contract adequately, yet this is the biggest area of resistance. Moreover, if it is a personal service contract, you would expect this to be a contract of the essence of the will: one is not binding one’s money, but one’s own services, therefore the strength of the manifestation of the will should be even stronger.
  
• 
  Yet, where common law and civil law Do agree is that these contracts are not enforced. At bottom, I think this is a good thing… when the relationship has broken down to this point, it’s best not to force the debtor to perform for the creditor, but from a purely theoretical point of view, it is highly inconsistent.